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Burke v. U.S. Department of Homeland Security

United States District Court, District of Columbia

September 8, 2017

DARRYL BURKE, Plaintiff,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, Defendant.

          MEMORANDUM OPINION

          RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE

         Plaintiff Darryl Burke is currently serving a thirty-year prison term for bank fraud and conspiracy to commit bank and wire fraud. In 2015, he submitted three overlapping Freedom of Information Act/Privacy Act requests to the United States Secret Service, a component of the U.S. Department of Homeland Security. Although not entirely clear, those requests apparently sought-among other things-a signed real estate contract that was allegedly produced by Wells Fargo Bank in response to a grand jury subpoena; the alleged grand jury subpoena itself; certain handwritten notes; and the transcripts of the testimony of three witnesses who appeared at Burke's criminal trial.

         In response, the Secret Service sent Burke a letter explaining that it had concluded that Burke's request sought third-party information and that, under the Service's governing regulations, it could provide the requested records only with the authorization of that third party. Unsatisfied, Burke filed the present action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, seeking to compel the Secret Service to release the requested records. This, in turn, prompted the Secret Service to conduct a search for documents responsive to Burke's request.

         After doing so, the Secret Service filed a motion for summary judgment, which is currently before the Court for decision. Dkt. 13. According to the Service, it was unable to locate many of the records Burke seeks, and the records that it was able to locate are subject to FOIA exceptions and thus need not be released. As to much of this, Burke does not push the point. He now asserts that he seeks the release of only two sets of records: First, he seeks “the signature page (No. 0149 P. 15)” of the “real estate contract between John H. Cobb and Claris[s]a Garvey.” Dkt. 15 at 5. Second, he seeks “any notes about the [s]ignature page from S.S. Agent Nat Maloney.” Id.

         The Secret Service attests that it has repeatedly and diligently searched for these records and that they are not to be found. See, e.g., Dkt. 13-3 at 2-3 (Falletich ¶¶ 8-12); Dkt. 20-1 at 3- 4 (Swain Decl. ¶¶ 13-15); Dkt. 21-1 at 2 (Swain Supp. Decl. 4-7). As a result, the only question that remains for resolution is whether the Secret Service has met its burden of showing that it has “conducted a search reasonably calculated to uncover” the two remaining categories of records that Burke seeks. Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (quoting Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). The Court concludes that the Service has met its burden and will, accordingly, grant the pending motion for summary judgment.

         I. BACKGROUND

         Because Burke has clarified that he now seeks to compel the Secret Service to release only (1) the signature page of the real estate contract between John H. Cobb and Clarissa Garvey and (2) any notes that Special Agent Maloney may have taken about that page, the Court will recount just that portion of the background relevant to those records.

         On April 20, 2015, the Secret Service received two FOIA requests from Burke, one dated March 24, 2015, and the other dated April 2, 2015.[1] See Dkt. 13-2 at 2 (Campbell Decl. ¶ 4); id. at 13, 15. Approximately a week later, the Secret Service wrote to Burke, informing him that, because his requests sought records about a third party-Clarissa Garvey-the Service could “neither initiate a search for responsive documents nor confirm or deny the existence of investigatory information pertaining to the person named in [the] request” without “the required” authorization, including “a notarized release from . . . Garvey.” Dkt. 13-2 at 18. The Service further explained that, if Burke did not respond “within thirty . . . days from the date of this letter, ” it would administratively close Burke's file. Id.

         Instead of providing that release, Burke submitted a third FOIA request, adding further detail to his earlier requests. Dkt. 13-2 at 36, 39-41. Of greatest relevance here, Burke states that he was “specifically ask[ing] for all page[s], includ[ing] [a] sign[ed] copy of [the] real[] estate contract between Clarissa Garvey and John Cobb, ” which was “subpoena[ed] from Wells Fargo” and “sen[t] by fax to S.S. Agent Maloney from Wells Fargo.”[2] Id. at 36. Burke attached the “first page of the sale contract between Clarissa Garvey and John Cobb” to his request, id; see also Id. at 40; highlighted the alleged Wells Fargo subpoena reference number for the documents he was seeking, see Id. at 36, 39, 41; and noted that he was requesting “public information” that had been “testif[ied] [to] by both part[ies] in [Burke's] public trial, ” id. at 36, 39. Because Burke's third request “did not include [the third-party] release[]” that he had been previously advised was required, however, the Secret Service's FOIA office “administratively closed [Burke's] file” without searching for any of the records he requested. Dkt. 13-2 at 4 (Campbell Decl. ¶¶ 15-16).

         Burke initiated this action in August 2016. Dkt. 1. Although his complaint is not crystal clear, the parties agree that, at a minimum, it seeks the two categories of records now at issue- the signature page of the real estate contract and any notes Special Agent Maloney may have taken about that page. After receiving the complaint, the Secret Service initiated its first search for these (and other) records. See Dkt. 13-2 at 4-5 (Campbell Decl. ¶ 18). The Miami Field Office was identified as the “controlling field office for the investigation leading to [Burke's] criminal case, ” and Special Agent Eric Falletich was instructed to search for responsive records, including “a real estate contract between Clarissa Garvey and John Cobb.” Id. at 5 (Campbell Decl. ¶ 21); see also Dkt. 13-3 at 1 (Falletich Decl. ¶¶ 1, 3-4). Falletich searched through the “[ten] banker boxes of documents associated with [Burke's] criminal investigation, ” “searched [his] computer hard drive” using the “search terms ‘Clarissa Garvey, ' ‘John Cobb, ' ‘Garvey, ' and ‘Cobb, '” and searched the “Miami Field Office network drive” using the same four terms. Dkt. 13-3 at 2-3 (Falletich Decl. ¶¶ 8, 10). Falletich's search of his hard drive and the network drive failed to yield any responsive records. Id. at 3 (Falletich Decl. ¶ 10). His search of the banker boxes, however, uncovered seventy-four pages of potentially responsive records that “reflect[ed] that they were produced in response” to the Wells Fargo subpoena referenced in Burke's FOIA requests. Dkt. 13-2 at 5 (Campbell Decl. ¶ 22); see also Dkt. 13-3 at 2 (Falletich Decl. ¶¶ 8-9). The Secret Service did not release any of those seventy-four pages of records to Burke, asserting that they contained only non-segregable information subject to FOIA Exemptions 3 and 7(C). See Dkt. 13 at 8-10.

         Relying on the adequacy of Falletich's search and these FOIA exemptions, the Secret Service moved for summary judgment. Dkt. 13 at 10. In opposing that motion, Burke “ma[d]e clear” that “the signature page (No. 0149 P.15)” of the real estate contract “and any notes about the [s]ignature page from [Special] Agent . . . Maloney” are “the only documents” that he is seeking in this litigation. Dkt. 15 at 5. This clarification, in turn, prompted the Secret Service to “conduct[] an additional search for th[e] signature page and any notes by Maloney about that signature page.” Dkt. 20 at 1. According to the declaration of Brian Swain, the Special Agent in Charge of the Secret Service's Miami Field Office, that search “consisted of (a) a review of the [ten] banker boxes of documents associated with the criminal investigation of [Burke], including a review of the documents associated with [the] Wells Fargo subpoena . . ., and (b) a search of all the electronic materials related to [Burke's] criminal investigation on the Miami Field Office network drive.” Dkt. 20-1 at 4 (Swain Decl. ¶ 14). He further attested that “[a]ll files likely to contain responsive materials were searched.” Id. This “second” search “did not yield the requested signature page or any notes about” it. Id. (Swain Decl. ¶ 15).

         On August 1, 2017, the Court ordered the Secret Service to provide additional information about its efforts to locate the requested records. The Court observed that Burke had filed a supplemental opposition (Dkt. 16) that included “several pages of trial transcripts from his criminal trial” in which a “witness discusse[d] the signature page of th[e] real estate contact” that Burke was seeking, and in which “a lawyer [had] indicate[d] that the signature page” had been “entered into evidence as ‘Government . . . Exhibit UU.'” Minute Order (Aug. 1, 2017) (quoting Dkt. 16 at 5-6). The Court noted that, although the Secret Service had already performed a supplemental search keyed to Burke's updated request, it had not indicated whether “it maintained copies of trial exhibits from [Burke's] criminal trial” or whether it had “searched those trial exhibits for the signature page” at issue. Id. Accordingly, the Court ordered that the Secret Service provide a supplemental declaration “informing the Court whether it . . . maintained a copy of the trial exhibits, ” and, if so, whether those exhibits had been searched for any records responsive to Burke's narrowed request. Id. The Secret Service responded to the Court's order on August 7, 2017, verifying that it had performed a search “specifically for copies of the trial exhibits from [Burke's] criminal trial;” that it did “not maintain a complete copy of the trial exhibits from [Burke's] criminal trial;” that, among the “few” trial exhibits it did maintain, it could not locate “the requested signature page;” and that a “third search” of the “banker boxes” and all “electronic materials related to [Burke's] criminal investigation” failed to “yield the requested signature page or any notes about that signature page.” Dkt. 21-1 at 2 (Swain Supp. Decl. ¶¶ 4-7).

         II. LEGAL FRAMEWORK

         FOIA cases are typically resolved on motions for summary judgment under Federal Rule of Civil Procedure 56. See, e.g., Shapiro v. U.S. Dep't of Justice, 153 F.Supp.3d 253, 268 (D.D.C. 2016). To prevail on a summary judgment motion, the moving party must demonstrate that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In a FOIA action, “the Court may award summary judgment to an agency solely on the basis of information provided in affidavits or declarations that describe ‘ . . . the justifications for nondisclosure [of records] with reasonably specific detail . . . and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.'” Thomas v. FCC, 534 F.Supp.2d 144, 145 (D.D.C. 2008) ...


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